Licudine v. Cedars-Sinai Medical Center
3 Cal. App. 5th 881
| Cal. Ct. App. | 2016Background
- Plaintiff (USC senior, rowing coxswain) underwent gallbladder surgery during which a surgeon nicked a vein, causing massive bleeding, conversion to open surgery, prolonged hospitalization, and formation of adhesions causing chronic GI pain and dysfunction.
- Plaintiff deferred law school admissions (accepted to Suffolk Law and others), worked as an assistant rowing coach, and claimed her injuries would impair her future career choices and cause lifelong medical needs.
- At trial the jury awarded $1,045,000 (including $730,000 for future loss of earning capacity and $285,000 past economic loss); the trial court granted a new trial on damages, finding the economic awards speculative and the non-economic award inadequate; defendants appealed the denial of JNOV.
- The trial court denied plaintiff’s late request to judicially notice Bureau of Labor Statistics median attorney salary and concluded plaintiff presented no evidence of likelihood of graduating law school, passing the bar, obtaining attorney employment, or of lawyer earnings.
- The Court of Appeal affirmed: it adopted a standard for valuing lost earning capacity (reasonable probability plaintiff could have achieved the career whose earnings are used) and upheld the trial court’s grant of a new trial on damages instead of JNOV given the unusual circumstances.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standard for valuing future lost earning capacity | Licudine: jury may base award on what plaintiff "could" have earned; evidence of acceptance to law school and injury suffice | Defendants: plaintiff failed to quantify lost earning capacity; award speculative without evidence of probability of becoming a lawyer or lawyer earnings | Court: jury must value lost earning capacity using careers the plaintiff had a "reasonable probability" of achieving; amount must be based on reasonably probable earnings |
| Sufficiency of evidence to support $730,000 future economic award | Licudine: acceptance to law schools and testimony on impairment support award | Defendants: no evidence on likelihood of graduating, passing the bar, obtaining legal employment, or lawyer salaries; award speculative | Court: substantial evidence lacking for the amount; plaintiff proved some future loss of capacity but not reasonable probability of becoming a lawyer nor earnings evidence |
| Remedy when verdict unsupported by evidence (JNOV vs new trial) | Licudine: trial court properly granted new trial on damages | Defendants: insufficiency of evidence required JNOV (entry of judgment for defendants), not a new trial | Court: trial court acted within discretion to grant new trial due to unusual circumstances (possible jury confusion, late judicial notice ruling), so new trial on damages affirmed |
| Judicial notice of BLS median attorney salary | Licudine: trial court must take judicial notice of BLS median salary | Defendants: BLS figure not mandatory judicial notice of truth; admissibility for proof is discretionary | Court: not required to judicially notice the truth of the statistic; court may exclude under Evid. Code §352; experts may rely on BLS but mandatory judicial notice of the salary figure is improper |
Key Cases Cited
- Fein v. Permanente Medical Group, 38 Cal.3d 137 (1985) (adopting Restatement approach to lost earning capacity valuation)
- Storrs v. Los Angeles Traction Co., 134 Cal. 91 (1901) (loss of earning power is general damage inferable from nature of injury)
- Robison v. Atchison, T. & S. F. R. Co., 211 Cal.App.2d 280 (1962) (future earnings recovery only where loss is reasonably certain)
- Ferguson v. Lieff, Cabraser, Hiemann & Bernstein, 30 Cal.4th 1037 (2003) (courts disallow speculative damages)
- Sargon Enterprises, Inc. v. University of Southern California, 55 Cal.4th 747 (2012) (damages must have a reasonable basis of computation)
- Zibbell v. Southern Pacific Co., 160 Cal. 237 (1911) (pre-injury earning capacity tied to vocation for which plaintiff was fitted and qualified)
- Connolly v. Pre-Mixed Concrete Co., 49 Cal.2d 483 (1957) (lost earning power is difference between capacity before and after injury)
- Neumann v. Bishop, 59 Cal.App.3d 451 (1976) (proof of prior earnings not required to recover lost earning capacity)
- Mangini v. R. J. Reynolds Tobacco Co., 7 Cal.4th 1057 (1994) (judicial notice of official acts does not extend to taking notice of truth of facts recited in those acts)